621 F.

2d 618

Mahlon M. DELONG, Appellant,

v.
UNITED STATES of America, Appellee.
No. 78-1847.

United States Court of Appeals,

Fourth Circuit.
Argued June 8, 1979.
Decided May 13, 1980.

Alfred F. Belcuore, Washington, D. C., (Walter H. Fleischer, Cole &

Groner, P. C., Washington, D. C., on brief), for appellant.
George P. Williams, Asst. U. S. Atty., Alexandria, Va. (William B.
Cummings, U. S. Atty., Alexandria, Va., James Michael Kelly, Asst. Gen.
Counsel, Raymond W. Fullerton, Director, Litigation Division, Thomas
Edmondson, Judith A. Wenker, U. S. Dept. of Agriculture, Washington,
D. C., on brief), for appellees.
Before WINTER and PHILLIPS, Circuit Judges, and DUMBAULD,
Senior District Judge, Western District of Pennsylvania, sitting by
designation.
JAMES DICKSON PHILLIPS, Circuit Judge:

Delong, formerly the State Director of the Farmers Home Administration

(FmHA) division of the United States Department of Agriculture for the State
of Maine, brought this action in the United States District Court to challenge his
reassignment and transfer for political patronage reasons to a new position in
Washington, D. C. His action sought, on constitutional grounds,1 injunctive and
declaratory relief designed to restore to him his former position with all related
benefits, and reversal by judicial review of an administrative determination that
his transfer did not violate his rights under the Veterans' Preference Act, 5
U.S.C. 7511. The district court rejected both claims, granting summary
judgment in respect of the claim for declaratory and injunctive relief and
affirming the administrative decision. We affirm on the administrative claim,

but reverse and remand for further proceedings on the constitutional claim in
light of the intervening decision of the Supreme Court in Branti v. Finkel, 445
U.S. ----, 100 S.Ct. 1287, 63 L.Ed.2d 574 (1980).
2

* After the change in National Administration in 1977, the Secretary of

Agriculture began replacing Republican state directors of FmHA with
Democratic appointees, and created a "program assistant" position for
incumbent Republican state directors who had statutory procedural rights as
military veterans. Delong's reassignment and transfer were the result of this
process.

Delong's prior position as state director for the State of Maine was classified as
a "Schedule A" exception from the competitive civil service, and as one not "of
a confidential or policy-determining character." It involved by job description
actual responsibilities that lay questionably on the line between policymaking
and nonpolicymaking. His reassigned position as project assistant carried the
same pay, civil service grade (GS-15), and fringe benefits as did his prior
position, but allegedly entailed reduced responsibilities. Whereas his work as
state director involved supervision of about 175 employees in Maine, final
authority over about $130 million annually in loans, and administrative
leadership in planning, organizing, and implementing programs in the state,
Delong offered proof that as project assistant he "has had little or nothing to
do," "has been given no secretary or staff and no long-range assignments," "has
been doing work normally performed by employees with the grade GS-11,"
"has never even met Mr. Cavenaugh, the (FmHA) Administrator" to whom
project assistants are supposed to report, has been "given orders for repeated
travel" and "transfers to inconvenient or distant locations on short notice," and
has received "petty assignments to write insignificant or useless reports and do
work . . . normally done by employees with grades much lower than GS-15."
On cross-motions for summary judgment, the district court concluded that as a
matter of law Delong's former position was a policymaking one within the
principle announced in Elrod v. Burns, 427 U.S. 347, 96 S.Ct. 2673, 49 L.Ed.2d
547 (1976), so that his claim of constitutional protection for his continued
employment in that position must fail on that fundamental point.

II
4

Elrod held that the dismissal or threat of dismissal from government

employment of a nonpolicymaking official because of his political belief and
affiliation abridged his First Amendment rights of speech and association by
imposing an unconstitutional condition upon the employment. Id. at 359-60, 96
S.Ct. at 2682-2683 (plurality opinion); id. at 375, 96 S.Ct. at 2690 (Stewart, J.,

concurring). The basis for the holding was that

5
(u)nder
(patronage) practice, public employees hold their jobs on the condition that
they provide, in some acceptable manner, support for the favored political party. The
threat of dismissal for failure to provide that support unquestionably inhibits
protected belief and association, and dismissal for failure to provide support only
penalizes its exercise.
6

Id. at 359, 96 S.Ct. at 2683 (plurality opinion); see id. at 375, 96 S.Ct. at 2690
(Stewart, J., concurring). On the other hand, patronage dismissals of
governmental officials holding policymaking positions were said to be justified
by a compelling state interest in effective "implementation of policies of the
new administration." Id. at 367, 96 S.Ct. at 2687 (plurality opinion).

Because the specific decision in Elrod turned so critically upon the

"policymaking or nonpolicymaking" inquiry, it was generally assumed that this
constituted the completely dispositive inquiry with respect to any government
job for which constitutionally protected status was claimed. E. g., Johnson v.
Bergland, 586 F.2d 993 (4th Cir. 1978); Committee to Protect First Amendment
Rights of Employees of the Department of Agriculture v. Bergland, (D.C.Cir.,
Dec. 27, 1979). Because Elrod, so understood, provided the controlling law
when the district court considered the parties' cross-motions for summary
judgment on Delong's claim in the instant case, both parties and the district
court properly focussed on this as the threshold and possibly dispositive
question for decision. As indicated, the district court resolved it against Delong.
Elrod still controlled on this issue down through submission of this case
following oral argument on appeal to this court. Following its submission,
Branti was decided on a basis which so substantially modified this
understanding of the Elrod principle2 that remand for reconsideration in light of
the principle as newly articulated in Branti is required.

In remanding, we express no view on the proper application of Branti to the

specific facts of the instant case. That is better left for first instance
consideration in the district court, where recasting of the pleadings, further pretrial proceedings, or other reordering of the case's presentation may be
appropriate to accommodate to the principle as given new expression in Branti.

III
9

Resolution of the threshold issue whether, under Branti, Delong's former

position carried constitutional protection against patronage burdens may not
end the matter upon remand. If protection is found due, there will remain the

question whether the transfer and reassignment in issue constituted an

unconstitutional burden. Because both Elrod and Branti involved dismissals,
neither directly addressed the question whether other burdens of the patronage
system short of threatened or actual dismissal might similarly violate First
Amendment rights.3
10

On this appeal the government has contended that as a matter of law a transfer
and reassignment such as Delong's cannot constitute an unconstitutional
burden; that Elrod 's protection was not intended to extend to lesser burdens
than the dismissal there involved. To the contrary, Delong contends that Elrod
's principle, as opposed to its specific rule of decision, sweeps wider than
threatened or actual dismissals and includes other patronage burdens of less
ultimate severity. Delong finds support for this general proposition in several
lower federal court decisions;4 and, more critically, urges that Johnson v.
Bergland, supra, decided by this court after entry of the district court judgment
in the instant case, establishes as the law of this circuit that a patronage transfer
and reassignment such as Delong's constitutes an unconstitutional burden upon
protected employment.

11

We agree with Delong and against the government that the Elrod-Branti
principle must be construed to provide protection against a wider range of
patronage burdens than threatened or actual dismissals. This much we did
recognize in Johnson in the course of reversing the denial of interlocutory
injunctive relief to a claimant facing a patronage transfer like Delong's. But
even though the claimant in Johnson held the same government position as
Delong's our decision in that case committed us only to the view that
comparable transfers might violate the Elrod-Branti principle, not that all
would as a matter of law.5 Just as the issue whether protection exists at all with
respect to a particular position is one to be decided under Branti on the
circumstances defining the special character of the position, so is the issue
whether a particular transfer or reassignment violates any protected rights one
to be decided on the specific facts of the case. As with disputed issues in
general, the latter issue like the former may be resolved as one of law or fact
depending upon the evidence adduced.

12

Because it may be necessary upon remand to decide whether Delong's transfer

and reassignment falls within the proscribed area, we must do here what was
not required in Johnson : define the legal standard by which the determination
is to be made. That standard can only be derived by looking to the broader
principle of unconstitutional burdens on government employment that in Elrod
and again in Branti were applied specifically only to dismissals. That broader
principle, expressly drawn upon in Elrod, is that the government

may
13 not deny a benefit to a person on a basis that infringes his constitutionally
protected interests especially, his interest in freedom of speech. For if the
government could deny a benefit to a person because of his constitutionally
protected speech or associations, his exercise of those freedoms would in effect be
penalized and inhibited.
14 would allow the government to 'produce a result which (it) could not command
This
directly' (citation omitted). Such interference with constitutional rights is
impermissible.
15

Elrod v. Burns, 427 U.S. at 359, 96 S.Ct. at 2683 (quoting from Perry v.
Sindermann, 408 U.S. 593, 597, 92 S.Ct. 2694, 2697, 33 L.Ed.2d 570 (1972)).

16

Dismissal or the threat of dismissal for political patronage reasons is of course

the ultimate means of achieving by indirection the impermissible result of a
direct command to a government employee to cease exercising protected rights
of free political association and speech. This is Elrod 's and Branti 's specific,
narrow application of the principle. We believe that when the principle is
applied to patronage practices other than dismissal it is rightly confined to
those that can be determined to be the substantial equivalent of dismissal.

17

In applying the principle, so limited, to the actual or threatened reassignment or

transfer of a government employee, the issue thus becomes whether the specific
reassignment or transfer does in fact impose upon the employee such a
Hobson's choice between resignation and surrender of protected rights as to be
tantamount to outright dismissal. This much and no more, we conclude, is a
necessary implication from the broader principle drawn upon in Elrod and
recognized without dispositive application by this court in Johnson. It is
obvious that not every reassignment or transfer can fairly be thought to have
this quality. It is equally obvious that in practical terms some might.

18

The factual test, so posed, is admittedly a difficult one for application, but the
necessity cannot be avoided if the issue is squarely presented, as it may be
upon remand in this case. Against that possibility, we offer these observations
for guidance.

19

Critical to the factual determination required should be both objective and

subjective factors pertaining to the officeholder's expectations and reliance
upon the continuation of particular assignments and geographical locations in
his employment. Only reasonable expectations and reliance should be weighed
in the balance. In general terms, a government employee should not be thought

reasonably entitled to any higher expectations and reliance in these respects

than would persons comparably situated in private employment. The exigencies
of reassignment and transfer normally incident to comparable levels of
executive employment in the private sector of business and industry should
generally be assumed normal incidents of government employment, without
regard to the specific motivation behind a challenged transfer or reassignment.
At the same time, in gauging the impact of a challenged patronage transfer or
reassignment, it would be appropriate to take into account any special
circumstances, including subjective expectations and reliance on the
officeholder's part in relation to the particular position held, that were actually
or constructively known to the official making or threatening the transfer or
reassignment, and that might reasonably be thought to increase the difficulty of
the choice imposed upon the employee. For the same reason, any prior
employment history of the officeholder that might bear upon the actual severity
of impact of the challenged reassignment or transfer would be relevant to the
inquiry. The ultimate issue, as indicated, is whether, all things considered, the
challenged reassignment and transfer can reasonably be thought to have
imposed so unfair a choice between continued employment and the exercise of
protected beliefs and associations as to be tantamount to the choice imposed by
threatened dismissal.
IV
20

Delong also challenged his transfer and reassignment under the Veterans'
Preference Act, 5 U.S.C. 7511, which provides that "(a)n agency may take
adverse action against a preference eligible employee . . . only for such cause as
will promote the efficiency of the service." Id., 7512(a). The Act defines
"adverse action" as "a removal, suspension for more than 30 days, furlough
without pay, or reduction in rank or pay." Id., 7511(2). In his administrative
appeal Delong argued that his reassignment, though it involved no reduction in
civil service grade or in salary, constituted a reduction in rank because the
duties and responsibilities of the new position, as it actually developed, were
inferior to those of the old. The Federal Employee Appeals Authority ruled that
under Commission policy, the reduced responsibilities alleged by Delong were
not indicia of "rank," which is based solely on an employee's official position.
Because Delong's transfer did not lower his standing in the agency's
organizational structure, the FEAA concluded that no reduction in rank, and
therefore no "adverse action," had occurred. It thus dismissed the appeal for
lack of jurisdiction, without considering the merits of the reassignment.

21

On Delong's appeal of the administrative ruling, the district court found that it
was not arbitrary or capricious, and affirmed the ruling based on the

administrative record. Delong contends that the court erred by not holding a de
novo hearing and taking additional evidence on the actual duties and
responsibilities of his new position, because his allegation that these did not
conform to the official position description formed the basis of his claim of
reduction in rank. But such a wide-ranging inquiry was not contemplated by the
terms of the Veterans' Preference Act. "Reduction in rank," like "adverse
action," has a narrow definition in this context. Under Commission policy, it
refers only to the employee's official position and its standing in the structure of
the organization. We think the Commission's disposition of the appeal was
obedient to the statute and not unreasonable.6 Moreover, given the confined
nature of the inquiry, we see no inadequacy in the agency's factfinding
procedures that would require de novo review of the action in the district court,
see Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 415, 91 S.Ct.
814, 823, 28 L.Ed.2d 136 (1971). In this case we think the district court
properly based its review and resulting decision on the administrative record
alone, and properly deferred to the Commission's ruling. See Leefer v.
Administrator, National Aeronautics and Space Administration, 543 F.2d 209
(D.C.Cir. 1976).7
22

AFFIRMED IN PART; REVERSED AND REMANDED FOR FURTHER

PROCEEDINGS IN PART.
DUMBAULD, Senior District Judge, concurring:

23

In my view the extent of the actual holding in Elrod v. Burns, 427 U.S. 347, 96
S.Ct. 2673, 49 L.Ed.2d 547 (1976), (a case upon which appellant necessarily
relies to establish a cause of action), is measured by Mr. Justice Stewart's
statement that

24

"The single substantive question involved in this case is whether a

nonpolicymaking nonconfidential government employee can be discharged or
threatened with discharge from a job that he is satisfactorily performing upon
the sole ground of his political beliefs. I agree with the plurality that he cannot."
427 U.S. at 375, 96 S.Ct. at 2690. 1

25

Elrod should be interpreted, in my opinion, as an "exemplification of the

general principle that exercise of federally guaranteed rights, especially
freedom of speech, must not be penalized." Mulherin v. O'Brien, 588 F.2d 853,
857 (C.A. 1, 1978).

26

Consequently I would conclude that appellant's situation does not fall within

Elrod. He has not been discharged, or threatened with discharge. He has simply
been transferred to another job with equal rank and pay (both being
policymaking jobs, in my estimation).2 The Civil Service Commission correctly
held that there had been no adverse action affecting him, however unhappy he
may be in leaving the lobsterpots of Maine for the hot summers of the nation's
capital.3
27

Moreover, appellant did not demonstrate in brief or argument any specific

assertion of free speech. It was not even stated that he was a registered voter in
any party. He did not courageously and patriotically expose any corruption or
inefficiency in the Department of Agriculture.4

28

In fact the record is consistent with an inference that the transfer complained of
was merely a "new broom" replacement of appellant by someone his superior
felt he could work with more satisfactorily. Such personnel changes often occur
in the private sector, for example when a corporate takeover results in a
shakeup in the executive suite. Appellant did not convincingly demonstrate that
his transfer was due to political factors rather than personal "new-broom"
preferences on the part of his superiors.

29

In my judgment the holding of the District Court and of the Civil Service
Commission should be sustained. However, the majority in Johnson v.
Bergland, 586 F.2d 993, 995 (C.A. 4, 1978), seems to hold that being
"relocated in a distant state" might "suffice to establish an infringement of . . .
first amendment rights." Although this goes beyond what was authoritatively
held in Elrod, I am bound to accept it as the law of the Fourth Circuit, and
therefore concur in remand to the District Court for determination of the factual
issues whether appellant's position in Maine was of a policy-making nature5
and whether his transfer was equivalent in coercive impact to dismissal or
threat of dismissal. I agree entirely with the majority's affirmance of the District
Court's conclusion that there was no "adverse action" against appellant because
he suffered no "reduction in rank or pay."

The claimed violations were of First Amendment rights of speech and

association and Fifth Amendment due process and equal protection rights.
Because we consider the First Amendment claims dispositive of the issues on
this appeal, we expressly address only those

Epitomized in the following passage from the Court's opinion:

"In sum, the ultimate inquiry is not whether the label "policymaker" or "

confidential" fits a particular position; rather the question is whether the hiring
authority can demonstrate that party affiliation is an appropriate requirement
for the effective performance of the public office involved."
Branti v. Finkel, 445 U.S. at ----, 100 S.Ct. at 1297.
3

In Ramey v. Harber, 589 F.2d 753, 757 (4th Cir. 1978) we expressly noted that
in Elrod "the concurrence of Justices Stewart and Blackmun in the plurality
opinion explicitly limited the Court's holding to patronage dismissals," because
" 'the narrow position of the concurrence must be taken as the holding of the
Court.' " See Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 993, 51
L.Ed.2d 260 (1977)

Miller v. Lincoln County Bd. of Educ., 450 F.Supp. 106 (S.D.W.Va.1978)

(transfers, demotions, terminations); Vega Matta v. Alvarez de Choudens, 440
F.Supp. 246 (D.P.R.1977) (transfer followed by termination); Tanner v.
McCall, 441 F.Supp. 503 (M.D.Fla.1977) (harassment or discharge within
Elrod 's proscription but not proved); DeLuca v. Sullivan, 450 F.Supp. 736
(D.Mass.1977) (failure to promote); Cullen v. New York State Civil Service
Comm., 435 F.Supp. 546 (E.D.N.Y.1977) (same)

In Johnson the issue was addressed in the course of reviewing the propriety of
denying a preliminary injunction against the transfer, specifically in
considering the question of irreparability of harm to the government employee
if the transfer went through. In that context we said that, assuming the other
elements of constitutional violation to be present, "the fact that (plaintiff) was
relocated in a distant state shortly after being (reassigned) would suffice to
establish "per se irreparable injury." Id. Given the context in which this
statement was made an assessment of probable irreparability of harm in the
course of determining the propriety of denying interim injunctive relief we do
not consider it a declaration of substantive principle that all patronage transfers
impose unconstitutional burdens upon government employment. In the
procedural posture of the Johnson appeal, the court never reached the question
of likely success on the merits, and certainly not the actual merits of the
plaintiff's underlying substantive claim. As indicated in text, we therefore
consider that Johnson held authoritatively on this point only that a particular
patronage transfer or reassignment might unconstitutionally burden government
employment, depending upon standards whose articulation was not required in
the procedural posture of the case there on appeal

The Federal Personnel Manual Supplement interpreting the critical statutory

language states that a "reduction in rank" may occur even though an employer
"has not been reduced in numerical grade, or class, or level," when an official

personnel action "results in a lowering of his relative standing in the agency's

organizational structure." Jt.App. 324. But "relative standing" is "determined by
his official position assignment." Accordingly, though the term "reduction in
rank" encompasses more than a grade or class reduction, the question of
"relative standing" may be determined only by reference to an employee's
official position description, and not to his actual duties which he alleges are
different. Here the Appeals Review Board considered the question of Delong's
relative standing, and concluded that it had not been reduced because in both
positions his immediate supervisor was the FmHA Administrator. Under the
governing regulations, this was the proper inquiry. The district court's "finding"
(App. 313) that Delong's responsibilities were substantially reduced and that his
duties were of substantially less prestige and significance may therefore be
relevant on the question whether the transfer imposed an unconstitutional
burden, but they are not relevant on whether, according to his official standing
in the organization, Delong was "reduced in rank." See note 7, infra
7

Affirmance of the narrow determination that within statutory contemplation

there has occurred no reduction in official rank constituting "adverse action"
clearly can have no preclusive effect in respect of Delong's claim that the
reassignment constituted an unconstitutional burden on his First Amendment
rights. Resolution of that claim requires a different inquiry

Mr. Justice Brennan's "wide-ranging opinion" (427 U.S. at 374, 96 S.Ct. at

2690) was accepted by only two other Justices

The fact that the Civil Service Schedule classified his job as nonpolicymaking
(i. e., not involving nationwide policy formulation) is not conclusive with
respect to the scope of policymaking as understood by Mr. Justice Stewart

As Judge K. K. Hall commented in his dissent in Johnson v. Bergland, 586

F.2d 993, 996 (C.A. 4, 1978), it is hard to believe that "a job transfer to
Mississippi is an injury of constitutional magnitude, a proposition which might
startle the citizens of that state."

Compare the cases of the school teacher who was dismissed for publishing in a
newspaper a letter criticizing the school board for spending too much money
for athletic fields instead of teachers' salaries, or the welfare worker who
criticized irregularities in administration of the food stamp program. 588 F.2d at
856-57

In view of the modification of Elrod by the majority of the Supreme Court in its
5-4 decision in Branti v. Finkel, 445 U.S. ----, 100 S.Ct. 1287, 63 L.Ed.2d 574
(1980), after this opinion had been written, I must substitute "whether
appellant's position in Maine was one in which party affiliation is a legitimate

factor to be considered and an appropriate requirement for the effective

performance of the public office involved" for the words "whether appellant's
position in Maine was of a policy-making nature." In my view the new Branti
criterion will be no more helpful to appellant than the Elrod test was; and
neither Elrod nor Branti deals with transfer as distinguished from discharge